Evolutions in Scholarship

It has been a busy – and exciting! – week in courts across the country, with important implications for libraries and fair use. Last Thursday, it was reported that Google and the Association of American Publishers (AAP) reached a settlement in their long-running case surrounding the Google Books project. Although the terms of the settlement have not been disclosed, we do know that publishers will have the option to opt-out of Google Books for out-of-print yet still in-copyright content, and the digital scans Google created will be removed. For those publishers who elect to stay in, Google will continue to provide 20% views via Google Books, sell full-text access via Google Play (with revenue sharing), and provide the publisher with a digital copy. On the whole, this changes things very little for users in practical terms – and does not end the class action lawsuit by authors still pending against Google – but ends one aspect of a 7 year lawsuit that libraries have been monitoring closely.

We also learned last week that for a second time, the lawsuit brought against UCLA for digital video streaming has been dismissed. Details are scant (and hat-tip to Kevin Smith for cluing me in, as I’d missed this until today), and the dismissal does not mean that what UCLA was doing was either fair use or covered by the licensing terms. Perhaps UCLA’s use is fair, perhaps it’s covered by licensing terms, perhaps the plaintiff did not have the rights to bring the suit in the first place. So like the Google settlement, little practically changes with this dismissal.

The big, fabulous, fist bump-worthy news for fair use and libraries came last night with the ruling that the Authors Guild’s lawsuit against HathiTrust has been dismissed on summary judgement by Judge Harold Baer. In 2011, the Authors Guild, two American authors, and several similar authors’ groups overseas filed suit against HathiTrust and several member institutions on the grounds that the in-copyright digitization that HathiTrust was coordinating, which enables new scholarship opportunities via searching and indexing and greater print-disabled patron access, exceeded the library-specific exceptions outlined in Section 108 of the Copyright Act. Furthermore, the plaintiffs claimed that because of the provisions outlined in Section 108, HathiTrust could not rely on fair use as provided in Section 107 to cover uses that fell beyond 108. Convoluted, no?

In a huge win for libraries, Judge Baer granted the defendants’ motion for summary judgement (MSJ). Nancy Sims provides an excellent explanation of the importance of an MSJ ruling, but the bottom line is that the judge felt that HathiTrust’s fair use defense was so air-tight, a trial was unnecessary as the outcome was a foregone conclusion. As Judge Baer wrote, “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the [Americans with Disabilities Act]” (see pg. 22 of the ruling).

Fair use wins!!

As always, there are deeper nuances in Judge Baer’s ruling, including the role of transformativeness and the option for foreign authors’ groups to pursue a suit based on copyright law in their respective countries, and for more on those I point you to: